In this fresh and provocative critique of judicial power, Matthew
Franck argues for a Supreme Court that is newly mindful of
constitutionalism's basis in the sovereign will of the people and
of the distinctly limited scope of judicial authority that is
permitted by that constitutional sovereignty. Neither activism nor
restraint, but a lively sense of the fundamental constraints that
deprive the Court of any legitimate choice between those two
options, is at the heart of Franck's model of appropriate judicial
modesty.
Franck challenges three propositions central to current debates
over the Supreme Court's role in American life: that the Court has
the final word in interpreting the Constitution above competing
views from other government branches; that it may legitimately
initiate actions to correct political or social dysfunctions left
uncorrected by those branches; and that constitutional decisions
may be grounded in natural law or a "higher law" located beyond the
text of the Constitution.
Franck claims that these erroneous propositions have allowed the
Court's power to grow well beyond its constitutional mandate. He
persuasively argues that a more accurate and responsible view of
judicial power can be revived by reexamining the Framers' thought,
the writings of liberal philosophers (especially Hobbes, Locke, and
Blackstone), and the early opinions of the Supreme Court.
His reasoned critique provides illuminating new perspectives on
the jurisprudence of John Marshall; on the origins and practices of
"judicial statesmanship" (presumed to have begun with Marshall); on
McCulloch v. Maryland (1819)-which was not, Franck argues, a ruling
in pursuit of a nationalist political agenda but conformed to a
modest vision of the judicial power; and on the mangled roots of
substantive due process. In addition, he reviews recent Supreme
Court confirmation hearings to demonstrate the large influence of
historical misconceptions on our understanding of the proper scope
of judicial power in a constitutional democracy.
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